Negotiators from 12 countries are meeting in Hawaii at the end of July in an attempt to finalize the Trans-Pacific Partnership (TPP) trade and investment agreement. As of this writing, the fate of two proposals on tobacco is unknown.

If completed, the TPP will become the largest trade and investment agreement in the world, accounting for about 40 percent of world trade. Among the key measures in the TPP is an investor-state dispute settlement (ISDS) mechanism, which gives corporations the right to challenge government regulations that threaten their profits.

Philip Morris lawsuits

Similar ISDS mechanisms in bilateral investment treaties have allowed current lawsuits by Philip Morris International against Uruguay and Australia.

Threats of similar trade disputes have been levelled against many other countries, and some governments have backed down rather than face multi-million dollar legal bills. Perhaps the most famous example is Canada, which gave up plans to become the first country to implement plain packaging of tobacco in the 1990s.

Comedian John Oliver conducted a thorough and comedic review of the issue in 2015. It can be viewed here.

The public health community has come out strongly in favour of exempting – “carving out” – tobacco measures from the TPP, i.e., allowing governments to regulate tobacco without the threat of trade lawsuits.

'Carve out'

In 2013, Malaysia proposed a full carve-out in the TPP, meaning that nothing in the treaty would apply to tobacco measures. At the same time, the United States proposed very weak language, which did nothing more than explicitly state that tobacco control measures fall under general public health exceptions. While such exceptions give a government a better chance of overcoming trade suits, they do nothing to prevent the suits in the first place.

No other country has taken a position on the tobacco issue, and as negotiators arrived in Hawaii it was very unclear whether and how tobacco would be dealt with in the final text.

US campaign

A campaign in the United States to exempt tobacco from the TPP and other trade agreements has generated strong support. Scores of organizations and politicians have written to the Obama administration, including the American Public Health Association, the American Medical Association, the Association of State and Territorial Health Officials, the National Association of City and County Health Officials and the National Association of Attorneys General.

Public health groups in most of the other TPP countries (which are Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States and Vietnam) have joined the fight in their own countries.

Whatever TPP negotiators decide about tobacco, it will likely become the norm. The United States has touted the TPP as the model 21st-century trade agreement.

Once the negotiators have a final text, it will be up to countries’ legislatures to ratify it.